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With (Religious) Liberty and Justice for All

by Jerry Cox

Some people don’t believe me when I say I support religious liberty for all people. Well, I do. Not just for Baptists or Protestants or Christians, but for all. I don’t agree with all religions, but that does not disqualify them from religious freedom.

Recently the Arkansas House Judiciary Committee rejected Senate Bill 1119, the Religious Freedom Restoration Act. Kentucky and Kansas both passed related legislation earlier this year—and Alabama, Ohio, Texas, Oklahoma, Louisiana, Tennessee, Missouri, New Mexico, Arizona, and many other states have established similar laws over the past two decades. In a nutshell, these laws say the state government cannot burden the free exercise of religion unless doing so furthers a compelling governmental interest—such as protecting children or public safety, upholding the rule of law, and so forth.

When opponents of Senate Bill 1119 testified against the bill in committee, they made the comment that religion does not seem to be suffering in Arkansas. I had one person ask me how much more religious freedom we need—after all, there’s a church on almost every street corner in a lot of our communities. These comments hint at an underlying assumption: Religion is nothing more than something a person does for an hour or two every week. That’s an erroneous assumption.

For many people there’s a sad disconnect between church on Sunday morning and the other one hundred sixty-seven hours of the week. But faith isn’t a meeting you attend; it’s something meant to impact every aspect of your daily life. The Ten Commandments aren’t just for the Sabbath. Grace, mercy, and forgiveness don’t occur in church buildings alone. They are all actions meant to be lived out.

When the law treats religion like nothing more than an intellectual exercise, religious freedom comes under attack. It becomes OK to believe something, but not OK to act on that belief. That’s what happened in Dallas, Texas, a few years ago. The city passed an ordinance against feeding homeless people on the street. The idea was that if homeless people could not find food on the street, they would quit living on the street.

Naturally, this affected homeless ministries, and they sued the city. Earlier this year a federal judge ruled the city did not have a compelling interest at stake in the ordinance, and struck down the ban under Texas’ state Religious Freedom Restoration Act. Because Texas had a law protecting the free exercise of religion, these homeless ministries were able to continue serving their community.

Shouldn’t the First Amendment to the U.S. Constitution have been enough to address this? Well, yes, it should have been, but the high court has adjusted the First Amendment’s interpretation in the past twenty years. In Employment Division v. Smith, the U.S. Supreme Court ruled “generally applicable” laws—like this city ordinance—could infringe religious freedoms. In a roundabout way, the decision changed the definition of religious liberty from the freedom to do something to the freedom to believe something. State and federal governments have been trying to clean up this mess ever since.

Opponents argue religious freedom laws might create loopholes for criminals. Well, no polygamist cult, pedophile, or similar criminal in any state has used these laws to justify their actions. In 1878, the U.S. Supreme Court ruled against polygamy in Reynolds v. United States, stating the government sometimes needs to pass and uphold laws affecting even religious persons. In more than a century, that has not changed.

There is a clear body of case law governing what is and is not covered under religious liberty. The problem is the government has not been content to leave religious liberty alone; it has chosen to erode some of that liberty over the past two decades. Proposed laws like Senate Bill 1119 would help stop that erosion.

Whether it’s Catholics being told they have to buy insurance policies that pay for contraception and abortion; Muslims being denied a building permit without cause; seniors in Balch Springs, Texas, being told they cannot pray over their food at the senior center; pharmacists in Illinois being ordered to distribute abortifacients against their conscience; or students being told they cannot wear religious clothing or jewelry, religious liberties are increasingly being infringed. Without proposed laws like Senate Bill 1119, the free exercise of religion is in danger of becoming an intellectual exercise only.

Jerry Cox is President of Family Council, a conservative organization based in Little Rock, Arkansas.